Citation Nr: 21023956 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-14 313 DATE: April 21, 2021 ORDER Entitlement to service connection for sleep apnea as secondary to service-connected residuals of a deviated septum status post rhinoplasty is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the most probative evidence of record weighs in favor of finding that the Veteran’s sleep apnea is caused or aggravated by his service-connected residuals of a deviated septum status post rhinoplasty. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea as secondary to service-connected residuals of a deviated septum status post rhinoplasty have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force November 1960 to November 1964. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the September 2020 rating decision, the Veteran was granted service connection for residuals of a deviated septum status post rhinoplasty, an issue that had been on appeal. As this issue has been resolved by a full grant of the benefits sought as to that matter, that the issue is no longer part of the current appeal. See 38 C.F.R. § 19.26(d). 1. Entitlement to service connection for sleep apnea as secondary to service-connected residuals of a deviated septum status post rhinoplasty The Veteran seeks entitlement to service connection for sleep apnea which he contends is proximately due to or aggravated by his service-connected residuals of a deviated septum status post rhinoplasty. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As noted above, the first element of service connection requires medical evidence of a present disability. VA treatment records show that the Veteran has a current diagnosis of obstructive sleep apnea, as noted in the most recent December 2020 VA examination. Thus, the issue remaining before the Board is whether the Veteran’s sleep apnea is related to service, or due to or aggravated by any of his service-connected disabilities to include his residuals of a deviated septum status post rhinoplasty. The Board notes that the Veteran’s service treatment records are silent as to complaint, diagnosis, or treatment of sleep apnea or any other sleeping or breathing issues during service. The Veteran underwent a VA examination in December 2020. The VA examiner confirmed his diagnosis of obstructive sleep apnea and determined that it is less likely than not proximately due to the Veteran’s service-connected residuals of a deviated septum status post rhinoplasty. The Board notes that the opinion does not address the Veteran’s contention that his sleep apnea may be secondary to his residuals of a deviated septum status post rhinoplasty. El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013); see also Allen v. Brown, 7 Vet. App. 439 (1995). In January 2021, the Veteran submitted an article from the Cheney Clinic outlining a positive association between suffering from a deviated septum and sleep apnea. In March 2021, the Veteran submitted a medical opinion from private physician, Dr. T.D.S. The doctor thoroughly reviewed the Veteran’s claims file, including his military and medical history. Thereafter, the doctor concluded that that Veteran’s service-connected residuals of a deviated septum status post rhinoplasty is at least as likely as not a significant factor that contributed to the development of sleep apnea. The doctor explained that a deviated septum obstructs the airflow through the nostrils into the body, so when someone is sleeping with that obstruction, it creates negative pressure when their chest rises and tries to fill with air in the lungs causing closure of the airway, which then is what results in the apneas or stoppage of breathing. After a careful review of all the medical and lay evidence of record, the Board finds by resolving all reasonable doubt in favor of the Veteran, his sleep apnea is caused or aggravated by his service-connected residuals of a deviated septum status post rhinoplasty. In the absence of an adequate VA medical opinion, the Board has based its finding on the only adequate medical opinion of record, the March 2021 private medical opinion provided by Dr. T.D.S. The Board finds this opinion to be highly probative as it was based on a review of the Veteran’s clinical history and application of the doctor’s medical expertise and knowledge as it is relates to the facts of the Veteran’s case. Moreover, the doctor provided a detailed and plausible medical rationale for the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). In the absence of any other probative medical opinion to the contrary or evidence of any other intervening cause, the Board accepts Dr. T.D.S.’s conclusion that the Veteran’s sleep apnea is caused or aggravated by his service-connected residuals of a deviated septum status post rhinoplasty. The Board finds the medical opinion competent and credible. Further, the Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for sleep apnea as secondary to residuals of a deviated septum status post rhinoplasty is warranted, and the Veteran’s appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rosenthal, Ariana The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.